Citation Nr: 18103100
Decision Date: 05/17/18 Archive Date: 05/17/18
DOCKET NO. 14-20 987A
DATE: May 17, 2018
ORDER
The claim to reopen the matter of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia is denied.
FINDINGS OF FACT
1. In a December 1997 rating decision, the RO confirmed and continued a denial of the Veteran’s claim of entitlement to service connection for schizophrenia. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance.
2. Additional evidence received since the December 1997 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for an acquired psychiatric disorder to include schizophrenia.
CONCLUSIONS OF LAW
1. The December 1997 rating decision denying service connection for schizophrenia is final. 38 U.S.C. § 7105(c) (1992); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996).
2. Since the December 1997 rating decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia; this claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1975 to October 1979.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.
Whether new and material evidence has been submitted to reopen a claim of entitlement to an acquired psychiatric disorder to include schizophrenia.
In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017).
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118.
The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In August 1994, the Veteran asserted a claim of entitlement to service connection for a personality disorder, which was denied in a February 1995 rating decision. The Veteran filed a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in July 1995. In August 1995, the Veteran perfected an appeal as to the service connection claim. However, in February 1997, he withdrew his appeal.
Also, in February 1997, the Veteran asserted a claim of entitlement to service connection for schizophrenia. In a March 1997 decision, the RO denied the Veteran’s claim. The RO confirmed and continued this denial in a December 1997 rating decision. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO's December 1997 rating decision is final as to the Veteran’s claim of entitlement to service connection for schizophrenia, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103.
The Veteran now seeks to reopen his claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in December 1997. After reviewing the record, the Board finds that new and material within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for an acquired psychiatric disorder to include schizophrenia.
The evidence associated with the Veteran's claims file at the time of the last final denial in December 1997 included service treatment records (STRs), service personnel records, VA treatment records, and the statements of the Veteran.
At the time of the last final denial, the Veteran contended that he developed schizophrenia during his military service. See the VA psychological evaluation dated September 1994.
The Veteran served on active duty from November 1975 to October 1979. The Veteran’s enlistment examination was absent any indication of a psychiatric disability. In December 1978, he was evaluated for allegations of child abuse and it was noted that he had problems controlling his temper. In February 1979, it was noted that no significant mental illness was found. A September 1979 Report of Mental Status Evaluation indicated that the Veteran “has been experiencing more stress than what he can usually handle without exhibiting signs of maladjustment.” The evaluation continued, “[n]ow he is getting close to explode[ing]; his behavior has become passive-aggressive type; he has entertained suicidal ideas; potential for improvement is very poor.” The Veteran was diagnosed with personality disorder – explosive type. He was discharged under the provisions of Chapter 13 due to a personality disorder in October 1979.
A VA psychological evaluation dated in September 1994 noted that the Veteran reported continuing psychiatric problems dating from his military service. He explained that he was having marital problems and got into trouble in the service. He stated that he was offered a choice of getting out of the service or going to the hospital for a psychiatric evaluation, and the Veteran chose to be discharged. The VA treatment provider stated that the Veteran had no Axis I psychiatric disorder; an Axis II diagnosis of probable personality disorder was indicated.
VA treatment records dated in October 1996 and September 1997 documented diagnoses of schizophrenia and schizoaffective disorder.
As described above, a denial of the Veteran’s claim of entitlement to service connection for schizophrenia was confirmed and continued in a final December 1997 rating decision. The Veteran filed a claim to reopen, which was denied in a September 2011 rating decision. This appeal follows.
After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia has not been received.
The evidence associated with the claims file after the prior final decision in December 1997 includes the Veteran's VA treatment records, as well as lay statements of the Veteran, his niece, and his sister.
Medical evidence has been added to the record indicating that the Veteran continues to suffer from schizophrenia. See, e.g., the VA treatment records dated August 1999. This evidence is cumulative of evidence previously considered by the RO at the time of the last final decision. Moreover, the Veteran’s assertions concerning the incurrence and etiology of his claimed psychiatric disorder, although new, are essentially cumulative of evidence already of record. Similarly, the assertions of the Veteran’s sister and niece concerning the Veteran’s psychological symptomatology are cumulative of the evidence of already of record.
The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus between the diagnosed psychiatric disorder and his military service, which was not previously considered in prior decision. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra.
As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156 (2017). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for an acquired psychiatric disorder to include schizophrenia is not reopened.
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD Department of Veterans Affairs